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Officials eye data tool to gauge pretrial detainee risks

By Katie Lannan, State House News Service

Updated:
07/13/2016 08:58:26 AM EDT

BOSTON -- After reviewing data on pretrial detainees held in three county jails, members of a state criminal justice working group said they could see benefits to adopting a data-based pretrial risk assessment tool, although barriers exist to doing so in Massachusetts.

Researchers from the Council of State Governments Justice Center, who are reviewing the state's criminal justice system, on Tuesday presented findings to the bipartisan group, showing that pretrial decisions on whether to release or detain a defendant, the amount of bail, and release conditions "are not informed by individualized, objective, research-driven assessment of risk of flight or pre-trial misconduct."

Trial Court Chief Justice Paula Carey said an objective tool that would assess a defendant's risk of recidivism would be "very helpful to judges."

"Judges do that every day, make a decision about whether to release somebody on the street," Carey said. "It's like you hope and pray that you got it right, so any information that we can get I think is helpful."

Steve Allen, the Justice Center's senior policy adviser, outlined pretrial risk assessment tools used in other states, including Virginia, Colorado, Ohio and Kentucky, which predict factors such as failure to appear, dangerousness, and likelihood of pretrial misconduct. The technological tools analyze data including criminal history, pending charges, employment and residence history, and mental health or substance abuse issues, according to the Justice Center.

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Carey said that one tool -- the Arnold Foundation's Public Safety Assessment -- could not be used in Massachusetts because it includes dangerousness in its evaluation. The so-called Arnold Tool is used by three states -- Arizona, Kentucky and New Jersey -- and generates a "risk assessment score" based on inputted data.

The Supreme Judicial Court in 1992 struck down as unconstitutional a law that allowed dangerousness to be considered as a factor in bail decisions, which are based on whether a person is likely to flee if released. A more narrow law passed in 1994 allows defendants charged with certain offenses to be held if deemed dangerousness.

Public Safety Secretary Daniel Bennett said he agreed with the idea of a tool but said the state could face a "barrier."

"If we can't use a tool that considers dangerousness constitutionally, boy, that makes it awful tough on a judge to sort of fashion protecting the public," he said. "I agree with the tool. I do. I think it makes sense to me."

"Actually, the governor will decide what I agree with," Bennett added, to laughter.

Middlesex County Sheriff Peter Koutoujian called adoption of an objective tool for pretrial decisions "kind of a no-brainer," noting that such choices are made by multiple people with different viewpoints and experiences.

"It is fraught with humanity, which is what makes it beautiful but what makes it so troublesome," Koutoujian said.

Justice Center researchers studied the pretrial detainees in Middlesex, Essex and Hampden counties, where they said sheriffs were able to provide detailed information on the population.

Across those three counties, the average length of a jail stay was 56 days, the review found. Defendants who were eventually sentenced and transferred to a house of correction had much longer jail stays on average, ranging from 89 days in Hampden County to 168 days in Middlesex County, according to the review. Average stays for people released on bail pretrial ranged from 20 days in Middlesex to 27 days in Hampden.

Katie Mosehauer, who is leading the Justice Center's research in Massachusetts, said a significant variation in length of stays across the three counties was one of the key findings of the analysis.

Disparities among counties are common in other states as well, Mosehauer said, with each county operating as a separate system.

Anthony Benedetti, chief counsel at the Committee for Public Counsel Services, said that distinct cultures and practices in different counties can lead to a split in opinion among attorneys as to whether a data-driven tool is needed for pretrial risk assessment.

If lawyers believe the "bail process is working fairly" in the county and court where they practice, they are not interested in such a tool, he said.

"In places where they feel that DAs ask for high bails, and this is the perspective, in inappropriate instances and judges are granting it, they would like to see it implemented because they think the result would be better for our clients," Benedetti said. "I think it's complicated."

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